Factors Influencing he Degree of Penalties for Matrimonial Offenders in The Selangor Shariah Court of Malaysia

Abstract

The Islamic Family Law (Selangor) Enactment 2003 (IFLSE 2003) encompasses a range of matrimonial offences. The IFLSE 2003 empowers the Shariah Court judges with discretion to determine the degrees of penalties for these offences. In the absence of a clear guideline, there is a wide discretionary element in the decision-making process, leaving room for individual judicial interpretation and subjectivity in the application of penalties. Therefore, this research aims to analyze the factors influencing the degree of penalties imposed on matrimonial offenders within the Selangor Shariah Courts in Malaysia, in accordance with IFLSE 2003. This study employs a qualitative approach through semi-structured interviews with the judges of the Selangor Shariah Courts in Malaysia and conducting a thorough analysis of court files and documents related to cases of matrimonial offences. The research reveals several factors that significantly impact the court’s decision in imposing lighter or heavier penalties on the offenders, which include financial status, absence of a criminal record, the severity of the offence, mitigating appeal, the discretion of the judge, compliance with the court order, social consideration, and public interest. The study concludes that the exercise of judicial discretion, manifested through judicial opinion (ijtihād), plays a crucial role in determining the appropriate degree of penalties for matrimonial offenders. As a result, individuals committing similar offences may face differing penalties based on the court's consideration of the presented mitigating factors. The research findings have important implications for the administration of justice within the broader Islamic legal system in Malaysia. The identification of influential factors underscores the need for a clear guideline for sentencing and highlights the dynamic nature of Islamic jurisprudence in contemporary legal proceedings. This study contributes original insights into the field of Islamic family law and criminal justice in Malaysia. This research uniquely focuses on the gap concerning explicit guidelines for determining penalties under IFLSE 2003. Additionally, the identification of specific mitigating factors that influence sentencing decisions represents a novel contribution, offering a comprehensive understanding of the complex decision-making process in cases of matrimonial offences in Shariah Courts of Selangor, Malaysia.